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The “Eggshell Skull” Rule

What does it mean to take injured plaintiffs “as you find them?” It is generally easy to see that a wrongdoer should take responsibility for compensating the victim for the injuries that the wrongdoer, sometimes called the “tortfeasor,” caused. But, what about in cases of particular susceptibility where the injured person is more delicate, suffers more pain, or does not heal as speedily, as another person? Is the tortfeasor responsible for the pain actually caused the victim even if it is more than the ordinary person would have experienced?

In Jewish law, the Talmud touches on this very issue when considering compensation for injuries noting:

“Why, perhaps, not say that a person who is delicate suffers more pain whereas a person who is not delicate does not suffer [so much] pain, so that the practical result [for the Scriptural inference] would be to pay for the difference [in the pain sustained]! …. Why perhaps not say that there are people whose flesh heals speedily while there are others whose flesh does not heal speedily, so that the practical result [of the Scriptural inference] would be to require payment for the difference in the medical expenses!” Baba Kamma 84a

Even the same person, experiencing aging, may be more delicate at one time of life than another. Consider Michel de Montaigne in his essay “On Principle,” quoting Cicero, as Montaigne complains of his infirmities:

“Likewise I flee the slightest pains; and those that formerly would not even have scratched me, now pierce me through and through: so easily is my habit of body beginning to apply itself to illness. To a frail body every pain is intolerable.”

Then, Montaigne goes on to quote the Roman poet, Ovid: “Anything cracked will shatter at a touch.”

In our Common Law tradition, the case of Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (Wisc. 1891) is a tort case that explains the proposition that tortfeasors must take their victims as they find them.

George Putney (an 11 year old male) and Andrew Vosburg (a 14 year old male) were sitting in the classroom at their school in Waukesha, Wisconsin, when Putney (intending no harm) reached across the aisle and made contact with Vosberg’s shin just below the knee. Putney was unaware that Vosburg had sustained injury to the same leg about six weeks earlier. Moments later, Vosbur felt violent pain at the point of contact, became ill, reported vomiting, with severe swelling. The leg required two surgeries; during the second surgery, the doctors discovered the bone had degenerated to an unrecoverable state. Experts attributed the damage and loss of use of the limb to the contact by defendant Putney. The rationale of the case ultimately supported the rule in damages that the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether or not they could have been anticipated or foreseen by the wrongdoer.

Some people may be more susceptible to injury than others. This means that a defendant tortfeasor (wrongdoer) may have to pay if he hurts that particular plaintiff much more than a different plaintiff. If Putney had, for example, kicked someone other than Vosburg, the consequences may have been minimal or nonexistent. Nonetheless, if believe that you “take the plaintiff as you find him,” Putney is liable for the harm to Vosburg. That is the rule.

Suppose, you rear end a driver in front of you because, contrary to Washington law, you are texting while driving. You, as the following driver are liable for following too closely and hit the car in front of you. Perhaps the impact was relatively minor. Just a tap, you may protest. Even though you regard it as a minor impact, if the person in front of you has just completed spinal surgery or suffers a rare disorder that prevents clotting of blood (hemophilia) or is otherwise susceptible, you as the wrongdoer are held liable for the damages caused, even though greater than you intended or expected. This policy designed to encourage care and punish negligence.

Let me provide an example I have used with juries:

Imagine that you own a family farm. You and your kids are gathering eggs and carefully placing them in cartons for sale at the local market. You load the back of your van carefully. Then you head off to the market. A block away from the market, you stop at a traffic signal and are hit from behind by a driver who fails to stop. All the eggs are shattered. The at-fault driver who rear ended you doesn’t want to pay for the eggs. He says: “You should have been carrying bowling balls!”

Is this a good excuse? Certainly not! You take your plaintiffs (victims) as you find them. You were carrying eggs (not bowling balls) and you should get paid for the eggs!

This rule is sometimes called the “eggshell skull” rule, meaning that a tortfeasor is liable for all consequences flowing from his negligence injury another person, even if the victim had a skull as delicate as that of the shell of an egg, and the tortfeasor, unaware of the condition, caused the skull unexpectedly to break, causing injuries far beyond anything contemplated by the tortfeasor – and even if the tortfeasor did not intend to cause such a severe injury.

This rule is provided to Washington jurors as Washington Pattern Instruction 30.18.01:

WPI 30.18.01 Particular Susceptibility

If [your verdict is for the [plaintiff] [defendant], and if] you find that:

(1) before this occurrence the [plaintiff] [defendant] had a [bodily] [mental] condition that was not causing pain or disability; and

(2) the condition made the [plaintiff] [defendant] more susceptible to injury than a person in normal health,

then you should consider all the injuries and damages that were proximately caused by the occurrence, even though those injuries, due to the pre-existing condition, may have been greater than those that would have been incurred under the same circumstances by a person without that condition.

[There may be no recovery, however, for any injuries or disabilities that would have resulted from natural progression of the pre-existing condition even without this occurrence.]

Every case is different. Each person is an individual, subject to that individual’s unique constitution, strengths, and vulnerabilities. For justice to happen, jurors must compensate the victim as they find him or her. If a frail individual is hit in the crosswalk, it would be unfair to compensate that person only to the extent of harm they would have sustained had they been an elite athlete playing professional football. So, I hope this puts into perspective the reasoning behind the rule that wrongdoers must take their victims as they find them.